By Polly Storey
On July 18, 2022, new legislation and rules came into force governing appeals before the Court of Appeal for British Columbia.[1] In the recent decision of Yang v. Shi, 2022 BCCA 317 (Chambers), Justice Willcock provided some initial guidance to litigants and counsel regarding how the Court’s new summary determination process may be applied.
Summary Appellate Procedures
As part of the new regime, a summary determination process has been introduced under s. 21 of the Court of Appeal Act. The new regime allows a justice or registrar to refer an appeal to a division of the Court for summary determination if the justice or registrar considers that the appeal:
- is frivolous or vexatious; or
- can otherwise be dismissed on a summary basis.
If an appeal is referred on these grounds, then the appellant must have an opportunity to make written submissions or otherwise be heard. The Court can then dismiss the appeal summarily, if satisfied that one of the two requirements is met.
The new referral process for summary determination exists alongside a process by which an application may be made to “quash” an appeal, pursuant to Rule 60(1)(c) of the Court of Appeal Rules.[2] This Rule allows a party to an appeal to apply to quash an appeal “that is so devoid of merit or substance as to constitute an abuse of the Court’s own procedure”.[3]
Yang v. Shi
Yang v. Shi was an appeal brought by a self-represented litigant. The Order under appeal was made in 2019, by which the judge had:
- adjourned a hearing to permit the respondent time to reply to late-filed materials submitted by the appellant; and
- ordered the appellant to pay costs thrown away in the amount of $1,000.
As three years had passed since the Order was made, the only real issue was the payment of costs. The appellant said that she, as the payor, should have been entitled to an opportunity to test the reasonableness of the fees of the costs ordered. She also argued that the discretion to fix costs must be exercised sparingly, and contended that the amount of costs must not be fixed on a “rough and ready basis”.
Having read Ms. Yang’s factum, Justice Willcock described the chronology as “remarkable” (para. 4) and observed that, “[t]he subject matter of this appeal may properly be characterized as trivial” (para. 9).
Request for Summary Determination
The respondent filed a request under s. 21 of the Court of Appeal Act. The request gave Justice Willcock an opportunity to comment on the procedure to be followed and how s. 21 may be applied by the Court. Justice Willcock noted the following:
- Summary determinations under s. 21 must be based on written submissions, and will be determined before the hearing of the appeal on its merits;
- Section 21 allows a justice or registrar of the Court of appeal, on their own motion, to refer an appeal to the Court for summary determination. This may be contrasted against the procedure under Rule 60, which allows a party to apply to an Order quashing an appeal.
- If a party considers that a referral under s. 21 should be made by a justice or registrar, then they can request that the Court consider making such a referral. A formal application is not warranted, as the process is intended to allow the Court to dismiss an appeal on a summary basis where argument and evidence are not necessary to considering whether an appeal:
- is frivolous or vexatious; or
- can otherwise be dismissed on a summary basis.
Justice Willcock observed that this is why s. 21 contemplates the appellant, whose appeal is under attack, having an opportunity to make submissions to the Court. Section 21 does not provide respondents with a similar right to make submissions.
- In contrast, if evidence or argument is necessary to establish whether an appeal is manifestly devoid of substance or merit, then an application under Rule 60 is appropriate. This allows the parties to exchange written arguments and affidavit evidence.
Justice Willcock summarized the distinction between the tools as being whether the Court or the parties drives the process. For referrals for summary determination under s. 21, the process is Court-driven. For applications to quash, the process is driven by the parties.
Argument and Evidence Needed in Yang v. Shi
In the case before him, Justice Willcock held that the respondent’s arguments and submissions were necessary to decide whether the appeal was bound to fail. It was therefore not appropriate to refer Ms. Yang’s appeal for summary determination under s. 21.
Summary Determinations and Appeals from Estate, Trust, and Capacity Orders
It is often the case that estate, trust, and capacity appeals are brought in the context of emotionally-charged disputes. In some cases, litigants may take positions that, though deeply felt or believed, lack legal merit. Although full written and oral arguments will likely continue to be necessary for the Court of Appeal to determine whether a Supreme Court Order was made in error, the new summary determination procedure may provide the Court and parties with means of dealing efficiently with appeals in certain circumstances. Justice Willcock’s decision provides helpful guidance for parties and counsel in navigating the new Act and Rules, including in the context of appeals from estate, trust, and capacity orders.
For assistance with your Supreme Court or Court of Appeal matter, please contact a member of our Estates & Trusts Practice Group.
[1] Court of Appeal Act, SBC 2021, c 6; Court of Appeal Rules, BC Reg 120/2022.
[2] A similar process was previously provided for by s. 20 of the former Court of Appeal Act, RSBC 1996, c 77. The Rule also allows a party to apply to strike part of a factum or raise a preliminary objection to an appeal.
[3] Szopa v. Canada (Attorney General), 2020 BCCA 47 at para. 13.
